Arizona’s merits briefs preview the line of argument that Paul Clement will likely take on Wednesday, when he seeks to overturn the preliminary injunction of four provisions of S.B. 1070. Arizona bases its defense of the controversial law on the notion that the enjoined provisions “parallel” the federal immigration scheme, and that the state merely seeks to assert its “inherent authority” to enforce congressional policy with more vigor than the feds. Not only would implementation of these provisions impermissibly encroach on federal plenary power; it would also be problematic because the premise of parallelism is itself deeply flawed.

In an amicus brief on behalf of the Leadership Conference et al., to which we contributed, we offered several arguments to dispel the mistaken notion that the enjoined provisions “parallel” the federal regime. As we show, the enjoined provisions undermine congressional policy for many groups, such as those eligible for TPS, asylum seekers, victims of domestic violence and trafficking, and those eligible for adjustment of status. The provisions of the Arizona law assume a binary system of immigration status that simply fails to account for federal policy. We also show how Arizona’s laws present serious risks for United States citizens.

In addition, we zero in on Section 3, the provision criminalizing failure by unauthorized immigrants to register with the federal government under 8 U.S.C. 1302(a). This section epitomizes Arizona’s thorough misapprehension of federal immigration law. Arizona and Clement mistakenly presume the existence of a comprehensive federal registration scheme that simply does not exist. It is as if Arizona is legislating in a time warp. Instead of “paralleling” today’s federal registration scheme, Section 3—if it parallels anything at all—actually parallels the scheme of the 1940’s and 50’s, when the federal government was primarily concerned with identifying and deporting Communist sympathizers. For fifty-two years, federal regulations have largely limited registration forms (and requirements) to immigrants who are eligible for specified forms of status. This has been clear at least since the Eisenhower Administration, which promulgated a list of registration forms aimed at lawful residents and visitors. Even the post-9/11 “special registration” imposed by the Attorney General on particular groups did not cover those who entered without inspection (“EWIs”).

So why has Arizona attempted to resurrect vestigial language from the Alien Registration Act of 1940? Perhaps—as some commentators have concluded—this is an attempt to finagle back-door criminalization. Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will de facto criminalize their presence in this country. This directly conflicts with Congress’s decision not to criminalize mere presence (notably, all legislative proposals to criminalize presence have failed). Most EWIs, while subject to civil removal proceedings, are simply not subject to criminal penalties under the federal scheme. Although illegal entry constitutes a misdemeanor, it is governed by the federal five-year statute of limitations. That means that the 90+% of unauthorized immigrants who entered before 2005 are not chargeable under this provision.

Dissatisfied with a mostly civil federal immigration system and in the name of “attrition,” Arizona has plucked language from the anachronistic Alien Registration Act in order to create its own permanent criminal dragnet for EWIs. This approach exemplifies Arizona’s misapprehension of longstanding federal immigration policy.